Thursday, January 22, 2009

[O]nce they become present in the United States, what is their legal status? What is their constitutional status? I worry about that, because I don't want to have the same constitutional rights that you and I have. They're our enemy.

Now, there are two ways in which to view Constitutional rights.

First option: They are moral rights. A right to freedom of speech, fredom of the press, a trial, against cruel and unusual punishment is something that a person has as a matter moral fact. They are, in other words, 'inalienable' rights.

On this model, governments may decide to respect those rights or to violate them, but governments are not the creators of moral rights, nor does government have the the power to destroy moral rights. A government that exists within the bounds of morality is a just government, a government that violates moral rights is evil.

Second option: Rights are a contrivance of the state. They are human inventions that governments can create or destroy at will. On this model, there is no such thing as "good government" or "bad government" because the government itself determines what is good or bad.

On this model, if the government wishes to round up a section of its population and slaughter them, no moral crime has taken place. No right has been violated, precisely because the government does not recognize that the victims of such a slaughter have a right not to be slaughtered.

In other words, this second model does not recognize the possibility of an unjust law. One cannot say that a law is unjust - that it treats people unjustly - if justice itself is determined by what the law says.

It is clear that the founding fathers believed in the first model. The whole of the Declaration of Independence is a statement of this model - that rights are inalienable, that governments are established to secure these rights - that whenever any government becomes evil and systematically violates these rights it is the right of the people to alter or destroy that government and to put a new government in its place.

We also find this philosophy in the way that the Bill of Rights were written. The Fourth Amendment, for example, states

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,

This is not a statement that the government creates such a right. This is a statement that the right exists in nature, and the government is morally bound not to violate that right. It states that one of the ways we can distinguish moral government from immoral government is the degree to which it obeys or violates this right.

Representative Bill Young apparently holds to the second view of rights. His view, apparently, is that no moral rights exist at all so that. If one does not get his rights from government, one has no rights.

One can only wonder whether his philosophy that rights are created by government and governments can do no evil applies to his moral obligation to uphold his oath to uphold, protect, and defend the Constitution of the United States.

I need to add something for the benefit of long-term readers that explains how these two theories of rights relate to the desire utilitarian theory that sits as the moral foundation for these posts.

Desire utilitarianism holds that a "right" is "that which people generally have many and strong reasons to promote an aversion to violating." So, the right to freedom of the press implies that people generally have reason to promote an aversion to abridging the freedom of the press. A right against cruel and unusual punishment is a claim that people generally have many and strong reasons to promote an aversion to cruel and unusual punishment.

Desire utilitarianism, on this model, is consistent with the first option for a theory of rights given above. Governments have no power to decide by legislative fiat what people generally have many and strong reason to promote desires for or aversions to. These relationships exist as natural facts to be discovered.

Consequently, desire utilitarianism holds that there is a difference between good government and bad government - between just laws and unjust laws.

It is quite a different view of rights from that which Representative Bill Young believes in - and significantly more consistent with the view that this country was founded on.

I suspected many in Congress (and indeed, running for president) held the view that the US was not obligated to extend rights to the accused terrorists. Yet they would extend rights to the most heinous of serial killers?

What's law for the goose ...

I mean, Timothy McVeigh was even tried and convicted! Is there anywhere in our law that says it only applies to Americans? I know that's not the case, because we routinely prosecute foreign nationals.

So, I've been asking what's the deal? Why can't we treat these people like serial killers?

About Me

When I was in high school, I decided that I wanted to leave the world better off than it would have been if I had not existed. This started a quest, through 12 years of college and on to today, to try to discover what a "better" world consists of. I have written a book describing that journey that you can find on my website. In this blog, I will keep track of the issues I have confronted since then.